http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/index.html LawInfo - Legal Resource Center offers free legal forms and free legal documents that is designed to help consumers and businesses resolve their legal issues http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/what-is-mediation.html Mediation is negotiation carried out with the help of a trained facilitator. Two or more parties meet with a neutral third party, who guides the negotiation process by advising and listending to all sides, and whom helps the parties arrive at a mutually agreeable ("win­win") settlement. A mediated settlement is non­binding. This means that if any party in the dispute is unhappy with outcome, that party may opt not to sign a settlement agreement and instead continue negotiating ­ or proceed to arbitration or litigation. Mediation is one of the most informal dispute resolution procedures. The process is completely flexible and negotiable by the parties, and any party may walk out at any time. This does not mean, however, that mediation is a free­for­all. The process is always governed by rules of procedure and conduct, which have been agreed upon in advance by all parties to the dispute. Mediation FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/how-do-we-get-to-mediation-.html The mediation process is usually voluntary ­ the parties in a dispute come to an independent agreement to try to work things out with the help of a mediator. However, it is increasingly common for parties engaged in business to include dispute resolution clauses in their commercial contracts, stipulating that in any future disputes, mediation will be attempted first. And in some situations, such as divorce and custody cases, minor criminal matters, and other civil matters, mediation is increasingly being encouraged or mandated by the courts. Many states have passed statutes requiring disputing parties to participate in mediation before subjectng their cases to litigation. Mediation FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/how-much-time-is-required-to-schedule-a-media.html Generally speaking, the parties themselves determine the scheduling of mediation, unlike in the court system where the "court docket" and relevant court rules define the time parameters for each stage of a case. Thus, the mediation process is generally much speedier than the litigation process, with timing of mediations dependent only upon the availability of the parties, any representatives attending the mediation, and the mediator him or herself. Mediation FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/who-starts-first-in-mediation-.html There is no set format for the actual mediation process. However, as a general rule, all mediations involve a series of joint and separate meetings. The first step is a joint meeting in which all sides meet with the mediator ­ who describes the mediation process and then reviews the ground rules for participation, behavior, and confidentiality. The participants also discuss issues such as the role the mediator will play, who will represent each side during the discussions, who has authority to sign a final settlement, and what documents will be exchanged. If litigation over the matter is pending, the disputants and the mediator may discuss what pre­trial activities and/or discovery will be suspended, and whether the court should be informed of the suspension and the mediation. If either side has any doubts about the mediator's style or expertise, a substitute mediator may be suggested. Mediation rules are aimed at creating an atmosphere of cooperation and respect. They can include such things as agreeing to have only one person speak at a time, setting an agenda, limiting the scope of negotiation, defining the role of the mediator (this can range from a purely facilitative role to an evaluative one in which the mediator is permitted to offer opinions), defining the use of private meetings, agreeing what documents will be submitted to the mediator, establishing how confidentiality will be maintained, and stipulating how the sides will respond to media inquiries, if relevant. The initial meeting also serves as an open forum for the parties to explain their positions and express how they believe the case should be resolved. At this stage, the mediator begins to gather the facts, become familiar with the case, and assess the interests and perceptions of the parties. Each party also has an opportunity to rebut the other side under the supervision of the mediator, who may ask questions. If the mediator requests written statements from the parties and/or court briefs or documents that are part of pending litigation, another joint meeting may be scheduled to give each side an opportunity to prepare and gather these materials. In this case, the parties may wait until the second joint meeting to discuss their positions in the dispute. Mediation FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/who-keeps-things-under-control-.html After the initial airing of rules and views, the mediation enters a problem­solving phase. During this phase, often called the "Caucus Phase," the mediator holds one or a series of private meetings, or caucuses, with each party. At this point, the mediator literally conducts "shuttle diplomacy" ­ he or she shuttles between or among the parties, probing each side's position, asking questions, assessing the merits of each argument, narrowing the issues by identifying what is important versus what is expendable, and exploring alternative solutions. The mediator may request additional documents from participants to fully understand the case from each side's perspective. At the same times he or she works to defuse any hostility, in part by reframing the issues in obective language. A major advantage of mediation is that the process allows the parties to "vent" and engage in a sort of catharsis by having their "day in court." This therapeutic interaction often helps move parties to settlement. Mediation FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/what-happens-when-an-agreement-is-made-in-med.html Once the case is settled in a way that is agreeable to all sides, the mediator and/or parties will draft a document outlining the terms of the agreement and stipulating how it will be implemented. It may be circulated and edited further as necessary. As stated earlier, the outcome of a mediation is non­binding. Either side may reject a proposed settlement. If this occurs, the side objecting to the settlement may consent to work toward a new settlement, or it may give up and proceed to arbitration or litigation. It is important to note that mediated settlements are rarely rejected and mediation often leads to agrements that are more durable because the parties have participated in the process in which the agreements were reached. If both parties agree to and sign a settlement agreement at the conclusion of the mediation, the parties are bound to uphold that agreement. The settlement agreement is a contract; an action alleging breach of contract may be brought if the agreement is not subsequently honored. If litigation is pending, the settlement should be filed with the court so that it will be enforced without requiring a separate action for breach of contract. Mediation FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/is-mediation-voluntary-.html Mediation is usually voluntary although participation is sometimes mandated by contract or by the court. Settlement, however, can never be mandated. When settlement is reached, these mediated agreements are more likely to be complied with by the parties to the mediation, than are decisions imposed by arbitrators or judges. Mediation FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Mediation-Alternative-Dispute-Resolution/Federal/do-i-need-an-attorney-for-mediation-who-else.html Parties must carefully consider who should attend the mediation. It is particularly important that people with decision­making authority be present. A written agreement is drafted as soon as settlement is reached, and it is best that the people authorized to sign such a document are present. Important decision­makers include everyone who has a stake in the final outcome and whose authorization is necessary to achieve a settlement. Sometimes these stakeholders are actually external to the sispute, such as insurance carriers. Their presence at the proceedings minimizes the risk that a sound agreement will later be rejected. You may choose, but do not have to, have your attorney attend the mediation session. It is certainly a good idea to bring legal counsel to the proceedings if the other side will be similarly represented in the proceedings. Doing so can help bring a sense of balance to the proceedings. However, parties may wish to balance the cost of attorney participation in the proceedings, agains the utilty of of attorney involvement. Mediation FAQs Mon, 04 Jun 2007 21:51:22 GMT http://resources.lawinfo.com/en/Legal-FAQs/Arbitration-ADR/index.html Free Arbitration FAQs Alternative Dispute Resolution Sub-categories Sun, 29 Nov 2009 09:32:28 GMT